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Sunday, December 31, 2017

The Blue Book & the Foreign Emoluments Clause Cases Against the President: Old Questions Answered

In 1792, the
Senate directed President Washington’s Secretary of the Treasury, Alexander
Hamilton, to draft a financial statement listing the “emoluments” of “every person holding any civil office or employment under the
United States.”[1] Hamilton took more than
nine months to draft and submit a response, which spanned some ninety
manuscript-sized pages. The report included appointed or administrative personnel
in each of the three branches of the
federal government, including the Legislative Branch (e.g., the Secretary of
the Senate and Clerk of the House and their staffs) and the clerks of the
federal courts.[2] But Hamilton’s
carefully-worded response did not include
the President, Vice President, Senators, or Representatives.[3] The presumptive meaning of
this document is that Hamilton accurately responded to the Senate’s precise
request: elected officials do not hold office
. . . under the United States, and so they were not listed.

Contrary
explanations do not hold up. Two of the Legal Historians whose brief is before
this Court, Gautham Rao and Jed Handelsman Shugerman, have contended that
Hamilton’s list was designed to help avoid violations of the Constitution’s
Sinecure Clause.[4] It provides, “[n]o Senator
or Representative shall, during the Time for which he was elected, be appointed
to any civil Office under the Authority of the United States, which shall have
been created, or the Emoluments whereof shall have been encreased during such
time.”[5] Under this clause, members
of Congress cannot be appointed to offices (1) that were created during the
term of Congress to which they were elected, or (2) whose “Emoluments” (i.e.,
salary) were increased during the term of Congress to which they were elected.
Rao and Shugerman speculate that Hamilton’s 1793 list identified positions that
fell into these categories, so the President could avoid unconstitutional
appointments. According to Rao and Shugerman, Hamilton understood that the Senate
inquiry had a limited, unstated purpose and as a result, his roll of officers
hewed to that purpose, excluding the presidency, even though (in Rao &
Shugerman’s view) the presidency was encompassed by the office under the United States language in the Senate order. It is
not surprising that the Legal Historians do not advance this argument here,
because it makes little sense.

First,
by the time the Senate made its request to Hamilton in 1792, there had already
been two sets of congressional elections, and two classes of Senators had been
elected. Yet, the Senate order and Hamilton’s 1793 roll of officers makes no
attempt to distinguish between positions created during the Senate’s first
two-year term and the Senate’s second two-year term. Without that information,
Hamilton’s 1793 roll of officers would not have been useful in regard to
helping elected officials avoid violating the Sinecure Clause. Second, the
Sinecure Clause would prevent a Senator from being appointed to an Article III
judgeship that was created during his elected term. Yet the Senate order
specifically directed Hamilton to exclude all judges, and Hamilton’s document
followed those instructions. The list would have been useless to help avoid
violations of the Sinecure Clause with respect to judicial appointments, which were and remain an important class
of officers.

Third,
there is no evidence that Congress ever made such a request of Hamilton prior
to the start of the Second Congress in 1791 or prior to the start of the Fourth
Congress in 1795. To the contrary, Hamilton and the Treasury Department issued
dozens of circulars, memoranda, and reports concerning the federal workforce in
response to congressional requests.[6] For example, in 1791, the
House of Representatives directed the Secretary of the Treasury to prepare an
annual statement listing an “accurate statement and account of the receipts and
expenditures of all public moneys.”[7] In response to this broad
request, Hamilton’s 72-page report included the compensation for all Article
III judges, the members of the House and Senate, along with the Vice President
and the President.[8] In contrast, where
Hamilton was asked to list the “emoluments” of “every person holding any
civil office or employment under the United States,” excluding judges, he
did not list the compensation for Representatives, Senators, the Vice
President, or the President. In one document Hamilton and the Treasury
Department included all elected officials, and in the other document, Hamilton
did not include any elected officials. What differed was the language in the
instructions instructing Hamilton’s efforts. And where congressional guidance
sought a list of those holding office . .
. under the United States, Hamilton did not include any elected positions.

There
is an entirely different document that lists the salaries of President
Washington and Vice President Adams before recording the salaries of the
appointed officers included in Hamilton’s original report.[9] In parallel litigation
concerning the Foreign Emoluments Clause in the Southern District of New York,
the same group of five Legal Historians had cited this second document to
contend that the President holds an “office . . . under the United States.”[10] However, Tillman and JEP
filed a response, showing that this latter document was in fact a scrivener’s
copy drafted long after Hamilton’s death.[11] Subsequently, the Legal
Historians issued a formal apology, and withdrew their claim about this second
document from their amicus brief.[12]

The
editors of American State Papers, who
would publish in 1834 a typeset reproduction of this scrivener’s copy,
explained, indirectly at least, why President Washington and Vice President’s
Adams’s salaries were added. In 1816, Congress authorized the biennial
publication of the Official Register of
the United States, also known as the Blue
Book,[13] to record the
“compensation, pay, and emoluments” of “all officers and agents, civil,
military, and naval, in the service of the United States.”[14] The first edition of the Blue Book, published in 1818, lists the
salaries of President Monroe and Vice President Tompkins before recording the
salaries of appointed officers in all three branches; elected members of
Congress are not listed.[15]

Though
Hamilton’s 1793 roll of officers did not include the salaries of President
Washington and Vice President Adams, the editors of American State Papers nonethelessidentified this document in the index as the “‘Blue Book,’ or list
of civil officers of the United States.”[16] That is, the editors
viewed Hamilton’s original 1793 document as a progenitor or the best analogue
to the Blue Book from the time period
in which the Constitution went into force. After all, Hamilton’s 1793 roll of
officers listed the “emoluments” of all appointed officers in the executive and
legislative branches. (Congress had asked Hamilton to exclude judges.) However,
there was one significant difference between the format of the 1818 Blue Book and Hamilton’s 1793 roll: the
latter’s omission of the salaries of the President and the Vice President. To
conform Hamilton’s roll to the format of the Blue Book, an unknown Senate functionary inserted the emoluments of
President Washington and Vice President Adams. Once this addition was made,
Hamilton’s roll closely tracked the format of the Blue Book. Even the sequencing was identical: President, Vice
President, Department of State, Treasury Department, Department of War, etc.
When viewed in the context of the Blue
Book, the addition of the President and Vice President makes sense; it was
a formatting or editorial decision made in 1834, not an interpretation of who
holds “Office . . . under the United States” made in 1834, much less by Hamilton in 1793.

This
latter report, which was drafted by an unknown Senate functionary—likely to
conform to the format of the Blue Book—should
not be accorded the same weight as the original document signed by Hamilton and
transmitted to the Senate as an official Executive Branch communication. At
this juncture, the Legal Historians and Plaintiffs’ other amici have no response, whatsoever, to this important official
communication from Alexander Hamilton.

**This post is based on: Corrected Response
[Brief] of Scholar Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant
at Part II[D][1], at 20–24, District of
Columbia & State of Maryland v. Donald J. Trump, President of the United
States of America, Civ. A. No. 8:17-cv-01596-PJM (D. Md. Dec. 31, 2017)
(Messitte, J.) (filed by Professor Josh Blackman et al.), Doc. No. 77, https://ssrn.com/abstract=3089868; and Response
[Brief] of Scholar Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant
at Part II[D][1], at 20–25, District of
Columbia & State of Maryland v. Donald J. Trump, President of the United
States of America, Civ. A. No. 8:17-cv-01596-PJM (D. Md. Dec. 29, 2017)
(Messitte, J.) (filed by Professor Josh Blackman et al.), Doc. No. 76.

[3]Id. The editors of
the Papers of Alexander Hamilton
marked this document “DS,” meaning “document signed,” which indicates that this
document was the original signed by Hamilton. The cover letter of The Complete Report, whichwas drafted in long hand, can be found
at bit.ly/2fj6IQ0. The reproduction in the Papers of Alexander Hamilton is typeset. See supra note 2.

[8]See Report on an
Account of the Receipts and Expenditures of the United States for the Year 1792
[“The 1792 Report”], in 15 Papers of Alexander Hamilton 474, 498–510 (1969), bit.ly/2BvwJF9.

[9]See List Of Civil
Officers Of The United States, Except Judges, With Their Emoluments, For The
Year Ending October 1, 1792, in 1 American State Papers/Miscellaneous 57
(1834), bit.ly/2ptHRkm. The Condensed Report, whichwas drafted in long hand, can be found
at bit.ly/2xknN6j. The reproduction in American State Papers is typeset.

[13] John P. Deeben, The
Official Register of the United States, 1816-1959, National Archives, perma.cc/RJD6-S232.

[14]See, e.g., A Register of Officers and Agents, Civil,
Military, and Naval, in the Service of the United States on the Thirteenth Day
of September, 1817, at iii (Washington, E. De Krafft 1818), bit.ly/2BwkFmM.

The Reform Club, c. 1915

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